California cities and counties have long used growth control measures to limit the pace of residential and commercial development. Some impose annual caps on building permits. Others establish urban growth boundaries beyond which development is restricted or prohibited. A few use voter-approved moratoriums that freeze approvals for defined periods. Taken together, these measures can significantly restrict what a property owner can build or how quickly development can proceed.
These controls raise distinct legal questions. When does a growth control ordinance cross from legitimate land use regulation into a compensable regulatory taking? When does state housing law preempt local growth restrictions? What procedural remedies are available to developers who believe a local agency has applied growth controls unlawfully? These are active questions in California land use law, and the answers have shifted considerably in recent years.
What Growth Control Ordinances Are
Growth control ordinances are local laws designed to limit the rate or location of development. They take several forms. Some cap the number of building permits a city may issue in a calendar year. Others restrict development to areas inside a defined urban growth boundary, preserving agricultural and open space land outside that boundary from residential or commercial use. Some growth controls are enacted by city councils or county boards of supervisors. Others are voter-approved initiatives, which present distinct legal challenges.
California courts have generally upheld growth control ordinances as a legitimate exercise of local police power. Courts require the controls to bear a reasonable relationship to public health, safety, and welfare. The leading state authority is Associated Home Builders, Inc. v. City of Livermore (1976) 18 Cal.3d 582. In that case, the California Supreme Court upheld a building permit moratorium while articulating a standard requiring regional as well as local analysis when growth controls significantly affect housing supply.
That analytical framework has grown more complex as state housing law has expanded. Local growth controls that were once a settled exercise of local authority now operate within a legal landscape shaped by the Housing Accountability Act, the Density Bonus Law, the builder’s remedy, and a range of state statutes limiting how local agencies may respond to housing applications.
Common Types of Growth Control Measures
Annual Building Permit Caps
Annual permit allocation systems limit the total number of building permits a city may issue in a given year. These systems often involve a competitive scoring process. Proposed projects earn points based on criteria such as design quality, proximity to public facilities, or inclusion of affordable units. Projects that do not score high enough in a given year must wait for the next allocation cycle.
Permit caps can delay projects by a year or more even where zoning is otherwise satisfied. Where a cap system is challenged, courts examine whether it bears a rational relationship to legitimate governmental interests. Caps that effectively prevent a city from meeting its Regional Housing Needs Allocation (RHNA) obligations may conflict with state housing law.
Urban Growth Boundaries
Urban growth boundaries designate areas inside which development is permitted and areas outside which it is restricted or prohibited. Ventura County’s SOAR ordinances are one well-known California example. Similar frameworks exist in other California counties and cities.
Properties outside an urban growth boundary may retain their existing zoning designation but face significant restrictions on the uses they may accommodate. Where an urban growth boundary effectively prohibits all economically beneficial use of a parcel, regulatory takings arguments may arise. The strength of those arguments depends on the parcel’s acquisition history, the range of remaining permitted uses, and the extent of the economic impact.
Development Moratoriums
A development moratorium is a temporary halt on permit issuance, typically enacted to allow time for general plan updates, infrastructure planning, or environmental review. California Government Code section 65858 authorizes local legislative bodies to adopt interim ordinances as urgency measures. These measures protect public health, safety, or welfare while a permanent zoning ordinance is being studied. An interim ordinance under section 65858 can last up to 45 days initially, with extensions that can bring the total period to two years. (Cal. Gov. Code § 65858.) Courts review moratoriums to ensure they satisfy the statutory requirements and do not exceed the permitted duration.
A moratorium exceeding its statutory authorization may be challenged through a writ of mandate. Insufficient factual support for the urgency finding is also grounds for challenge. Where a moratorium significantly delays a project and causes economic harm, the property owner may evaluate whether the duration and impact give rise to a temporary regulatory taking argument.
SOAR and Voter-Initiative Growth Controls
Some of California’s most restrictive growth controls come from voter initiatives rather than local legislative bodies. Ventura County’s Save Open-space and Agricultural Resources (SOAR) ordinances are a prominent example. They prevent changes to agricultural and open space zoning in unincorporated areas unless voters approve the change.
Voter-initiative growth controls create unique legal challenges because property owners cannot seek relief through the usual city council or board of supervisors process. California courts have generally upheld these land use controls under the rational basis standard. However, property owners can still raise regulatory takings arguments regardless of how officials adopted the restriction. Those claims remain available even when an initiative-based measure eliminates all economically beneficial use of a specific parcel.
State Housing Law and the Preemption of Local Growth Controls
The Housing Accountability Act
The Housing Accountability Act (HAA), codified at Government Code section 65589.5, significantly limits a local agency’s ability to deny or downsize qualifying residential projects. Under the HAA, a local agency may not deny a housing development project, or impose conditions that render it infeasible, if the project complies with applicable objective general plan, zoning, and subdivision standards, unless the agency makes specified findings supported by substantial evidence. A local growth control ordinance does not override the HAA. Where a project meets the HAA’s requirements, a growth cap that would otherwise delay or prevent the project may not be applied to block it.
RHNA and the Builder’s Remedy
California law requires each city and county to plan for its Regional Housing Needs Allocation (RHNA), a state-determined number of housing units the jurisdiction is required to accommodate through its general plan housing element. Where a jurisdiction’s housing element is not in compliance with state law, the builder’s remedy becomes available. Under the builder’s remedy, a developer may submit a project that does not conform to local zoning, provided it meets specific affordability requirements, and the local agency has very limited grounds to deny it. The current status of the builder’s remedy and housing element compliance is discussed at Builder’s Remedy California 2026: Housing Element Compliance Update. A jurisdiction that relies on a growth control ordinance to limit housing production in ways that prevent it from meeting its RHNA obligations faces heightened exposure to builder’s remedy projects and HCD enforcement.
HCD Enforcement Authority
The California Department of Housing and Community Development (HCD) has statutory authority to review local general plan housing elements and to take enforcement action against jurisdictions that fail to comply with state housing law. Where a local growth control measure conflicts with state housing law, HCD may issue findings, refer the matter to the Attorney General, or take other enforcement steps. The scope of HCD’s enforcement power is described at How HCD Enforcement Power Works in California Housing Law.
SB 330 and Permit Freeze Protections
SB 330, the Housing Crisis Act of 2019 (Gov. Code § 66300 et seq.), prohibits local agencies from adopting or enforcing ordinances that reduce the intensity of land use below what was in effect on January 1, 2018, in jurisdictions subject to the Act. This “no net loss” provision limits the ability of local agencies to use downzoning or permit cap tightening as a growth control tool. SB 330 also prohibits local agencies from placing a moratorium on housing development in jurisdictions that have not adopted a compliant housing element. The statute’s requirements and their practical effect on developers are discussed at SB 330: Housing Crisis Act – What California Developers Need to Know
Zoning Conflicts and State Law
Where a local growth control ordinance conflicts with state housing mandates, state law generally controls. The framework for analyzing these conflicts is addressed at Resolving Zoning Conflicts in California: What SB 786 Means for Developers.
Regulatory Takings: When Growth Controls Go Too Far
The Legal Standard
The Fifth Amendment to the U.S. Constitution and Article I, Section 19 of the California Constitution prohibit the taking of private property for public use without just compensation. A growth control ordinance does not automatically constitute a taking simply because it reduces a property’s development potential. Courts have consistently held that not every diminution in property value caused by regulation is compensable.
The legal framework for partial regulatory takings comes from Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). The Penn Central analysis weighs three factors: the economic impact of the regulation on the claimant, the extent to which the regulation interferes with distinct investment-backed expectations, and the character of the government action. No single factor is determinative. The outcome depends on the specific facts of the parcel and the regulation at issue.
A categorical taking arises where a regulation eliminates all economically beneficial use of a parcel. Under Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), such a regulation requires compensation regardless of the government’s justification, unless the prohibited use would have been a nuisance under background principles of property and nuisance law.
Growth Controls as Regulatory Takings
Growth controls that impose permit caps, urban growth boundaries, or moratoriums rarely eliminate all economic value from affected parcels. Instead, they usually slow the pace or reduce the intensity of development. Courts analyze these partial restrictions under the Penn Central framework rather than the categorical Lucas rule.
A regulatory takings claim against a growth control ordinance depends heavily on the property’s history and the restriction’s impact. Courts also consider whether the owner could reasonably expect future development when purchasing the property. An owner who bought land for residential subdivision after a growth control ordinance existed may face a stronger challenge. An owner who acquired the property before the restriction may have a stronger investment-backed expectations argument.
Temporary Regulatory Takings
A government moratorium or delay that temporarily denies a property owner all use of their property may give rise to a temporary regulatory taking claim. The United States Supreme Court addressed this in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), holding that even a temporary deprivation of all use requires compensation. California courts apply this principle to development moratoriums that extend over significant periods and prevent any economically beneficial use during that time.
The difficulty with temporary taking claims in the growth control context is establishing that the moratorium or restriction denied all economically beneficial use during the relevant period. A moratorium that delays a project by two years but does not eliminate the existing permitted uses of the land may not reach the threshold for a temporary taking.
Inverse Condemnation
A property owner may pursue an inverse condemnation claim when a growth control measure takes or damages private property without formal condemnation proceedings. Article I, Section 19 of the California Constitution provides the basis for these claims. California’s constitutional protection extends beyond the federal Fifth Amendment because it covers property damage, not only property taken by the government.
The availability of an inverse condemnation claim depends on the nature of the restriction. Courts consider whether the measure causes physical damage, eliminates all economic use, or requires analysis under the Penn Central framework. The firm’s inverse condemnation practice is at Inverse Condemnation Law.
Procedural and Constitutional Challenges to Growth Controls
Due Process
A growth control ordinance that is applied in an arbitrary or irrational manner may be challenged on substantive due process grounds. The standard under federal substantive due process is whether the government’s action is rationally related to a legitimate governmental interest. That is a deferential standard, and most growth control measures survive it. Claims that a specific application of a growth control was arbitrary, rather than the ordinance itself, tend to be more viable.
Procedural due process requires that property owners receive adequate notice and an opportunity to be heard before a deprivation of a protected property interest. Where a growth control system involves a discretionary allocation process, the procedures for that process must satisfy due process requirements.
Equal Protection
An equal protection challenge argues that a growth control ordinance treats similar property owners differently without sufficient justification. These claims are difficult to prove because courts usually apply the rational basis standard to land use regulations. A challenger may argue for heightened scrutiny if the ordinance affects a fundamental right or involves a suspect classification. However, meeting that standard remains difficult in the land use context.
Writ of Mandate Challenges
A property owner who believes a local agency has applied a growth control ordinance unlawfully, or has used a growth control measure to delay or deny a project in violation of state housing law, may file a petition for writ of administrative mandate in California Superior Court. The writ petition asks the court to review the administrative record and direct the agency to comply with the law. The applicable standard of review depends on whether the decision involved a fundamental vested right. An overview of writ of mandate proceedings in the land use context is at Writ of Administrative Mandate in California Land Use Law.
The statute of limitations for challenging most local zoning decisions is 90 days under Government Code section 65009. Missing that deadline forecloses judicial review. Where a growth control ordinance prevents approval of a specific project, the 90-day period typically runs from the final agency decision on that project, not from the date the ordinance was enacted.
AB 253, AB 301, and Permit Approval Remedies
Recent legislation has provided additional procedural tools for applicants whose permits have been improperly delayed or denied. AB 253 and AB 301 addressed the remedies available when a local agency fails to act within required timelines or denies a project in violation of state housing law. Those measures are discussed at How AB 253 and AB 301 Force Permit Approvals. Where a growth control cap prevents a local agency from acting on a qualifying application within required timelines, deemed approval and penalty provisions may apply.
Growth Controls and General Plan Consistency
California law requires that all land use decisions be consistent with the applicable general plan. (Cal. Gov. Code § 65860.) A growth control ordinance that conflicts with the general plan’s land use designations or housing element may be challenged as inconsistent with the plan. Conversely, a project that is otherwise consistent with local zoning may still be denied if it conflicts with growth management policies incorporated into the general plan.
General plans must include a housing element that is certified by HCD as compliant with state law. A housing element that incorporates growth control policies must demonstrate that those policies do not prevent the jurisdiction from meeting its RHNA obligations. Where a housing element fails that test, the jurisdiction faces builder’s remedy exposure and potential HCD enforcement action.
An overview of zoning variances and other discretionary approvals that interact with general plan requirements is at Zoning Variances and Use Permits in California: How to Get Approval.
Recent California Legislation Limiting Local Growth Controls
The past decade has seen the California Legislature repeatedly narrow the scope of local authority over housing and development. The Housing Accountability Act, the Density Bonus Law, SB 330, SB 9, AB 2011, and a range of related statutes have collectively reduced the circumstances in which local growth controls can prevent or significantly delay housing development.
The trend has been toward greater state preemption of local land use authority in the housing context. This does not mean that all growth controls are preempted. Controls that address commercial development, infrastructure capacity, or environmental protection rather than housing supply may remain more insulated from state override. Growth controls that directly limit residential housing production face the greatest scrutiny and the greatest legal exposure.
The intersection of these legislative developments with specific local growth control ordinances is fact-specific. Whether a particular ordinance, as applied to a particular project, survives the current statutory framework depends on the details of the project, the local ordinance, and the jurisdiction’s housing element compliance status.
Kassouni Law’s Practice in Growth Control Matters
Kassouni Law has extensive experience in California land use and Constitutional property rights law. The firm’s land use practice covers the full range of disputes that arise from growth control ordinances, permit caps, urban growth boundaries, and moratoriums. The firm’s managing attorney, Timothy V. Kassouni, contributed amicus curiae briefing in Long Beach Equities, Inc. v. County of Ventura, a significant California Court of Appeal decision addressing inverse condemnation issues in the land use context. The firm also contributed briefing in Lucas v. South Carolina Coastal Council before the United States Supreme Court, which produced the foundational regulatory takings decision on total economic wipes.
The firm represents private property owners and developers exclusively. It has never represented a government agency. The full scope of the firm’s land use and development practice is at Land Use Law and Development Law. The firm’s zoning law practice is at Zoning Law.
Questions About a Growth Control Dispute
Kassouni Law represents private property owners and developers in land use disputes, permit denial challenges, inverse condemnation claims, and Constitutional property rights matters throughout California. The firm has never represented a government agency. Call 877-770-7379 or visit kassounilaw.com to arrange a consultation.
Frequently Asked Questions
1. Can a California city legally cap the number of building permits it issues each year?
California courts have generally upheld annual permit allocation systems as a valid exercise of local police power, provided they are rationally related to legitimate governmental interests such as infrastructure capacity or orderly planning. However, permit caps that prevent a jurisdiction from meeting its RHNA obligations may conflict with the Housing Accountability Act, SB 330, or other state housing statutes. Where a cap system prevents approval of a qualifying housing project, state law may override the local restriction. The outcome depends on the specific ordinance, the applicable state statutes, and the jurisdiction’s housing element compliance status.
2. Can a growth control ordinance constitute a regulatory taking under California law?
It depends on the facts. A growth control ordinance may constitute a categorical regulatory taking if it eliminates all economically beneficial use of a specific parcel under Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Most growth controls do not go that far. They usually limit the pace or intensity of development instead of eliminating all productive use. Courts analyze partial regulatory takings under the Penn Central balancing framework. They weigh the economic impact, interference with investment-backed expectations, and the character of the government action. No single factor controls the outcome. Each case depends heavily on its specific facts.
3. How does a development moratorium differ from a permanent growth control ordinance?
A development moratorium temporarily stops permit issuance. Local agencies typically adopt moratoriums under Government Code section 65858 as interim urgency ordinances. A moratorium can remain in effect for up to two years with approved extensions. By contrast, a permanent growth control ordinance places ongoing limits on the number or location of permits without a defined expiration date. Property owners and developers can often challenge moratoriums on procedural grounds because agencies must satisfy specific statutory requirements, including urgency findings and duration limits. A writ of mandate may be available if a moratorium exceeds its statutory authority or lacks sufficient factual support for the urgency finding. By contrast, developers typically challenge permanent ordinances on substantive grounds, including state preemption, general plan inconsistency, or regulatory takings claims.
4. Can state housing law override a voter-approved growth control measure?
California courts have held that state law can preempt voter-approved local ordinances in areas where the state has occupied the field or where the local measure conflicts with state policy. The California Supreme Court’s decision in Building Industry Association of Southern California v. City of Camarillo (1986) 41 Cal.3d 810 addressed the relationship between state housing law and local growth controls. More recent cases and statutes have continued to develop this area. Where a voter-approved growth control measure prevents a jurisdiction from meeting its RHNA obligations, or conflicts with the Housing Accountability Act, SB 330, or other state housing mandates, those state laws may override the local measure depending on the specific conflict. This is an active and evolving area of California law.
5. What legal options are available to a developer whose project is delayed by a growth control ordinance?
Several remedies may be available depending on the situation. A writ of administrative mandate under Code of Civil Procedure section 1094.5 allows developers to challenge local agency decisions that deny or delay qualifying projects. The Housing Accountability Act and SB 330 may provide additional challenges to growth controls that block eligible projects. Permit caps that delay completed applications beyond statutory deadlines may trigger deemed approval provisions. AB 253 and AB 301 also provide procedural remedies in certain cases. An overview of these remedies is at How AB 253 and AB 301 Force Permit Approvals. Developers may also evaluate inverse condemnation claims when growth controls cause a regulatory taking. The available remedy depends on the restriction, applicable laws, and project-specific facts.
